THE SUPREME COURT
[Supreme Court Appeal No: 38/2018]
Clarke C.J.
McKechnie J.
Charleton J.
O'Malley J.
Finlay Geoghegan J.
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
AND
ANDRZEJ GRUCHACZ
APPELLANT
JUDGMENT of Ms. Justice O'Malley delivered on the 10th day of May 2019
Introduction
1. In accordance with the determination of this Court granting leave to appeal ([2018] IESCDET 118), two issues arise in this appeal against convictions for murder and false imprisonment. The first relates to the identification of an accused from still photographs or CCTV footage, in circumstances where no witnesses at the trial gave evidence of identification and the question was left to be determined by the jury making its own assessment of the material. The appellant complains that he was not notified in advance of the trial that such a procedure might be adopted, and argues that it marked a significant departure from the principles set out in The People ( Director of Public Prosecutions) v Maguire [1995] 2 I.R. 286. He says that it should not have been permitted, on the basis that admissible oral evidence of identification could have been available to the prosecution. The prosecution had intended to call such evidence but was ultimately unable to do so for a variety of reasons.
2. The second issue relates to the interaction, in the circumstances of the case, of s.3 of the Criminal Procedure Act 1865 and s.16 of the Criminal Justice Act 2006. These provisions, roughly speaking, provide procedures for dealing with a witness who does not give evidence in accordance with a prior statement. In this case, the evidence of a particular prosecution witness was for the most part as anticipated from his statement, but he was declared hostile pursuant to the 1865 Act procedure and in line with the principles as set out in People (AG) v Taylor [1974] I.R. 97. This happened on foot of his denial that he had identified the appellant from a photograph said to have been shown to him by the gardaí. Subsequently a short section of his witness statement, dealing with that particular issue, was admitted as evidence under the terms of the Act of 2006. It is argued by the appellant that there is a tension between s.3 of the Act of 1865, the terms of s.16 of the Act of 2006 and the relevant case law. On the facts of the case, it is contended that the witness was too readily characterised as hostile in respect of oral evidence that undermined the prosecution, while at the same time being treated as credible insofar as his evidence was capable of being seen as adverse to the appellant. Furthermore, it is argued that the alleged identification of the appellant by the witness, from which he attempted to resile in oral evidence and which was the subject of the s.16 application, should have been regarded as tainted in any event as it transpired that he had previously been shown a photograph by gardaí.
Background Facts
3. On the evening of the 20th June 2014 Patryk Krupa, a young Polish man, was walking in Athlone town with two friends - Bartek Kurowski and Szymon Rutkowski. Four men drew up in a black BMW, out of which two men emerged. Mr. Rutkowski was headbutted by one of the men, and he and Mr. Kurowski, were told to leave. Following a brief exchange Mr. Krupa then went off in the car. His two companions were concerned for his welfare and started to search the local area to try and locate him. Later in the evening they found Mr. Krupa in the river Shannon. The emergency services were alerted but Mr. Krupa was, tragically, deceased. He had sustained serious head injuries.
4. One of the men who got out of the car was described as being tall and skinny with dark hair and a Polish accent. Mr. Rutkowski said that this was the man who assaulted him. At the trial the prosecution contended that this was the appellant. The second man was a strikingly big man, wearing three quarter length trousers with visible blood stains on his clothes. The prosecution argued that this was the co-accused at the trial, Leszek Sychulec.
5. Mr. Rutkowski was shown certain still photographs by the gardaí, and identified the men in them as the two men in question. He was also able to name the two other individuals that were present in the car. He identified Szymon Tarkowski, the owner of the vehicle, as being the driver, and Kuba Zmuda as one of the passengers. Mr. Tarkowski subsequently pleaded guilty to the offence of false imprisonment. Mr. Zmuda was a prosecution witness at the trial. According to his evidence, Mr. Krupa had been taken out of the car and assaulted by the same two men who had accosted him in the street.
6. Gardaí were aided in their investigation by CCTV footage obtained from various locations around the Athlone area. While neither the abduction incident nor any subsequent assault was captured, the footage acquired allowed the gardaí to track the movements of the deceased up to the time of the abduction and to track the movements of the black BMW before and after that time. Some particularly important footage came from a service station on the Roscommon Road. A minor incident had occurred at the premises, involving two men who appeared to be intoxicated. They had departed in a silver Audi. A number of staff members and customers who had been present at the time were called in the trial, and described a big man and a tall thin man, both of whom had bloodstains on their clothes. CCTV footage and a number of still images from the premises were put in evidence by the prosecution.
7. It is relevant to note that the staff in the service station were familiar with Mr. Sychulec. Indeed, it seems that he had been a familiar face in Athlone for some time. He appears not to have challenged the assertion that he was the big man to be seen in the images. Mr. Zmuda's evidence was that Mr. Sychulec and the tall man who could be seen in the service station stills with him had committed the crime - that was certainly not accepted by Mr. Sychulec, but counsel for this appellant now accepts that it is beyond dispute. The prosecution case, therefore, was that the men in the footage had committed the crime, and that one of them was Mr. Gruchacz.
8. The prosecution also wished to link the suspects to a number of vehicles. The first was a silver coloured Audi A6 estate. This car was owned by Mr. Tomasz Jaromin. He told gardaí, and gave evidence at the trial, that he had lent it to Mr. Sychulec for a period of time on the day of the murder. There was also a second black BMW, owned by a Mr. Marcin Rodziewicz. There was evidence that Mr. Sychulec regularly borrowed this car, and that he drove away in it after returning the silver Audi to Mr. Jaromin on the same day.
9. This second BMW was later found crashed in a ditch in the early hours of the 21st June 2014. Various items were found in the car. Of particular relevance to the investigation was a driver's licence or identity card bearing the name and details of a Mr. Tomasz Strugacz, and a photograph. There were also four passport photographs matching the photo on the licence. The identity card had been stolen in Dublin some time in 2013, and it was clear that the photographs found in the car were not of Mr. Strugacz. One of the four passport photographs was given the identification EC1. It would later be shown to a number of witnesses. The prosecution case was that it was a photograph of the appellant.
10. Mr. Sychulec and the appellant were both ultimately charged with the murder and false imprisonment of Mr. Krupa.
The relevant legislation and case law
11. I think it is helpful to sketch out the relevant legal principles before describing the events in the trial.
Inconsistent statements
12. Section 3 of the Criminal Procedure Act 1865 provides as follows:
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.
13. In O'Flynn v District Judge Smithwick [1993] 3 I.R. 589, Costello J. noted that a witness might be considered hostile for any one of a number of reasons including "an obvious disregard of the witness' duty to the proper administration of justice".
14. In The People (Attorney General) v Taylor [1974] I.R. 97, the Court of Criminal Appeal gave definitive guidance on the procedure to be followed when the section is invoked. The procedure, as applied in this case, is not in dispute but its consequences are. Taylor concerned a murder charge, and the problem for the prosecution was that the widow of the deceased gave evidence that might be seen as favouring the defence of provocation. The actual point upon which the application under s.3 was made was that the witness said in evidence that the weapon used was a pair of scissors, while in her statement she had said that it was a knife. However, as the Court of Criminal Appeal observed, the nature of the weapon was not in fact a matter of real concern. The true motivation for the prosecution was to discredit her other evidence.
15. The procedure to be followed should, in the Court's view, have culminated in the witness being asked, in the presence of the jury, whether she accepted that there was a contradiction or material variation.
16. It may be important to note that, while the Court in Taylor was concerned primarily with a situation where the prosecution sought to impugn the credibility of the witness, and held that this could be done by ensuring that the jury were made aware that the witness had made contrary statements on the same matter, this is not the sole basis on which the provision may be invoked. In The People (DPP) v Hanley [2011] I I.R. 247, the Court of Criminal Appeal (in a judgment given by Fennelly J.) endorsed the proposition that it was also permissible to use the procedure in an attempt to persuade the witness to adopt the truth of the original statement.
17. The effect of s.16 of the Criminal Justice Act 2006 goes significantly further. Subsection (1) provides for the admission of a statement as evidence of any fact mentioned in it if the witness refuses to give evidence; or denies making the statement; or gives evidence which is materially inconsistent with it. Subsections (2) to (4) set out the conditions of admissibility. The court must be satisfied that the statement was made; that it was made voluntarily; that its content is admissible in evidence; and that it is "reliable". The statement must have been given on oath or affirmation, or contain a statutory declaration by the witness to the effect that it is true to the best of his or her knowledge or belief. If these latter conditions are not fulfilled, the court must be otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth.
18. The test for "voluntariness" is that applicable to disputed confessions - The People (DPP) v Murphy [2013] IECCA 1.
19. In deciding whether the statement is reliable the court is to have regard to (a) whether or not it was given on oath or affirmation or was videotaped; or (b) whether, if none of the circumstances mentioned in (a) apply, there is "other sufficient evidence" in support of its reliability. The court must also have regard to any explanation given by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement.
20. As the Court of Criminal Appeal said in The People (DPP) v O'Brien [2010] IECCA 103, the task of the judge in assessing the issue of reliability is to examine the circumstances and factors surrounding the making of the statement to ensure that it is reliable in the sense that it can be relied upon, rather than in the sense that it is true. Similarly, the Court of Appeal stressed in The People (DPP) v Campion [2015] IECA 274 that it was "quintessentially a matter for the jury" to decide whether they could identify where the truth lay.
21. This last proposition is qualified by the statutory exclusions. The statement is not to be admitted in evidence if the court considers either (a) that, having regard to all of the circumstances, including any risk that its admission would be unfair to the accused, in the interests of justice it ought not be admitted, or (b) that its admission is unnecessary having regard to other evidence given in the proceedings. The Court of Appeal in The People (DPP) v Campion [2015] IECA 274 described the exclusions as setting a high bar for the prosecution, and as including a situation where the trial judge believes that the out-of-court statement was substantially untrue.
22. The concept of "necessary" evidence was analysed by the Court of Criminal Appeal in The People (DPP) v Murphy [ 2013] IECCA 1, where it was contrasted with evidence that was "merely supportive, useful, helpful or even desirable" and was held to mean "essential in a material and substantive respect".
23. Subsection (5) provides that in estimating the weight, if any, to be attached to the statement regard is to be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise. This is a matter for the jury, and it is therefore necessary for the trial judge to give appropriate directions as to how they should approach it.
24. In The People (DPP) v Murphy [2013] IECCA 1 the Court of Criminal Appeal stressed that the admission of the statement as evidence simply meant that it was available for consideration, and was entirely separate from the obligation of the jury to assess the value of the evidence. The weight to be attached to it might vary greatly depending on the facts of the case. It would be necessary to bring to the attention of the jury all matters directly and indirectly relevant to accuracy and reliability such as the circumstances in which the statement was made and the explanation, if any, offered by the witness in respect of the refusal to stand over the statement. The Court considered that it would be necessary for the judge to isolate the evidence and treat it quite distinctly from the more general observations usually made on the evidence before the jury. The judgment continues:
"On the general side, it seems to this Court that reference should be made: to the historical role of the Hearsay Rule and the reasons that lay behind it; to the court's longstanding preference to have guilt or "innocence" determined by direct sworn evidence, tested by the safeguards which exist; to the differences between oral evidence and witness statements made pre-trial without judicial control; to the existence of such statements and to sworn evidence which may deny their existence, or their content or be materially inconsistent with them; to the difficulties of reliability presented by such conflict involving the same witness and to the potential dangers of relying on anything which that person may have said, either then or on oath before them, and if they should so rely, what on and to what extent. Finally however, they should also be told that, having regard to the direction as given, it remains a matter exclusively for them to determine what weight or value, if any, they place on the witness's overall evidence, whether given outside trial or before them."
25. In The People (DPP) v Campion [2015] IECA 274 the Court of Appeal expressed general agreement with this approach but noted that it was an attempt to provide assistance rather than prescription. The Court had some doubt as to whether a jury would necessarily be assisted by an exposition of the hearsay rule.
26. Subsection (6) provides inter alia that the section is without prejudice to s.3 of the 1865 Act.
Identification by the jury
27. In The People (DPP) v Maguire [1995] 2 I.R. 286 the primary evidence against the accused on a charge of robbery was footage taken by a security camera. No witness gave evidence of being able to identify the men, and the case went to the jury on the basis that it was for them to decide whether the footage identified the appellant.
28. Giving the judgment of the Court of Criminal Appeal, Barron J. dealt extensively with the use of video film as an aid to investigation and as evidence in its own right. On the latter aspect, the Court said that a video could be used in two ways. Firstly, if a witness who was at the scene of the crime gave, or alternatively was unable to give, identification or description evidence, the video could be used to demonstrate why that was so. Secondly, if a witness who was not at the scene identified the persons involved from stills taken from the video, it could be used to support that identification. It was emphasised that it was necessary to protect the accused against unduly prejudicial evidence, and that the usual and proper warnings required in relation to evidence of identification must be given to the jury.
29. The judgment then continues:
"It must be made clear to the jury also that its function is to assess the credibility of the witnesses and that, only where there is no independent evidence of identification, should it seek to form its own view of the identity of the accused. When it is proper for it to do so, it may use such view together with its view as to the rest of the evidence in making its decision. Such direction must also make it clear to the jury that before it can convict it must be satisfied that the person in the dock is the person shown on the film.
Whichever way the video evidence is used, the role of the jury is not primarily to decide on its own view of identity, but to decide whether the evidence which it has heard is credible. In so doing, it must have regard to the video evidence, but in the same way as it has regard to maps, photographs, drawings etc. Its role is similar to that of a jury brought to the scene of a crime. It is not brought so that it can decide for itself whether some action was or was not possible, but to decide whether the evidence of a witness giving evidence that it was or was not, as the case may be, should be accepted as credible."
30. Barron J. referred to R v Dodson (1984) 79 Cr. App. R. 220, where the defence had objected to photographs from the scene being given to the jury for comparison with photographs subsequently taken of the accused. The objection was based on the fact that the jury members could not be cross-examined as to their identification. The Court of Appeal of England and Wales held that in undertaking this exercise the jury members were not acting as experts, as they might be if asked to judge handwriting or fingerprints. They were only being asked to do what the average person did from time to time in domestic, social or other situations - deciding whether they were sure that the person in the photograph was someone they were then looking at or had seen recently.
31. In his concluding observations Barron J. said:
"It is clearly unsatisfactory to ask a jury to identify an accused from a video film without adducing any evidence in support of such identification. There may be cases where no one can be found who can or who is prepared to come to court to identify an accused. In such cases, where the trial judge is satisfied that no such evidence is available, then the matter can be left to the jury."
32. The conviction in Maguire was quashed on the basis that the jury had been given inadequate directions concerning its functions in relation to the evidence. Unfortunately, there is no description in the judgment of the charge that had been given, and no guidance as to what would constitute a proper charge.
The trial
The evidence of Mr. Jaromin
33. On the basis of his statement as included in the book of evidence it was anticipated that Mr. Jaromin would say that a second man was present when Mr. Sychulec borrowed his Audi, and that Mr. Sychulec referred to this man as "Andrzej". It was also expected that Mr. Jaromin would say that on a later date he had been shown photograph EC1 and had identified it as a photograph of the man with Mr. Sychulec.
34. A bench warrant was issued for Mr. Jaromin's attendance on day three of the trial. He attended voluntarily on day four and was called that day. Counsel for the defence objected in respect of two matters arising out of his statement of proposed evidence. The primary objection was to the witness offering evidence that Mr. Sychulec referred to the other man as "Andrzej". It was submitted by the defence that this was inadmissible hearsay, on the basis that there was no other evidence establishing that the appellant had been present. The evidence was, however, considered admissible by the trial judge. In so ruling, he observed that all that the evidence would establish was that a particular person in a particular place was introduced as having a particular name. If there was no other evidence against him the appellant would be entitled to a direction.
35. Objection was also taken, again based on Mr. Jaromin's statement, in relation to the purported identification of the appellant as the man with Mr. Sychulec. According to the statement, he had made that identification having been shown EC1, without having been asked for a description of the second man, and without having seen any other photographs. It was pointed out that there had been no follow-up procedure such as an identification parade. It was submitted that while what had occurred might be acceptable as a step in an investigation, it could not ground reliable identification evidence in the trial.
36. The trial judge took the view that it was reasonable and proper for the gardaí to show witnesses the photograph found in the car, without having to find a range of other photographs to show with it. He contrasted this with the showing of, for example, a photograph taken from garda records. Once it had been shown, any further procedures such as an identification parade would have been open to different objections. The evidence was part of a circumstantial web that the prosecution was attempting to weave. It was also open to the prosecution, on the basis of the decision of the Court of Criminal Appeal in DPP v Maguire , to invite the jury to connect the accused in the dock with the visual images gathered in the investigation. The evidence could be the subject of cross-examination, and any infirmities potentially present would be amply addressed by the Casey warning (see: People (AG) v. Casey (No. 2) [1963] I.R. 33).
37. As expected Mr. Jaromin gave evidence that he was the owner of the silver Audi and that Mr. Sychulec borrowed it from time to time. He also said that he was present at the Roscommon home of his friend Marcin when, on the afternoon of the murder, Mr. Sychulec arrived, borrowed the Audi and went off in it with another man. He testified that during this encounter he thought that he heard Mr. Sychulec refer to the second man as Andrzej. He said that the two men arrived back later in the evening and this time left in Marcin's black BMW.
38. A difficulty then arose for the prosecution when Mr. Jaromin confirmed that he had met with Garda Treacy and that she took a statement from him. When asked by prosecution counsel if he had been shown anything (meaning the photograph) he claimed that he had not.
39. In the absence of the jury counsel for the prosecution referred the witness to the part of his statement where it was said that he had been shown photograph EC1, and that the man shown in it was the man who was present with Mr. Sychulec. However, he once again denied that he had been shown any photograph. Garda Treacy gave evidence that she had met with the witness on the 24th June 2014 at Marcin's house, had shown him EC1, and had taken the statement from him. Garda Treacy then said that she had met the witness a day previously, at a garage in Roscommon. During this encounter another garda had shown Mr. Jaromin a picture that was on Garda Treacy's phone. She said that this was an image taken from CCTV footage in the service station. She no longer had the same phone and did not have a copy of the image. She had not taken a note of this encounter, because she was not questioning the witness, and it was not referred to in her statement.
40. Further evidence was heard in the voir dire from Garda Treacy and Mr. Jaromin in relation to the circumstances in which his statement had been taken. Counsel for the prosecution then applied for the admission of the part of the statement dealing with EC1, pursuant to s.16 of the Criminal Justice Act 2006. The defence objected, given that the state of the evidence now was that the witness had previously been shown some unknown picture and there was no evidence as to whether or not he had made any identification from it.
41. Counsel for the prosecution indicated that he was also applying to have the witness treated as hostile in accordance with the principles set out in People (AG) v Taylor [1974] I.R. 97. His intention was to cross-examine only in relation to whether or not Mr. Jaromin had been shown EC1. The trial judge temporarily "parked" the s.16 application but accepted the application to treat the witness as hostile, thereby allowing the prosecution to cross-examine him in relation to the statement.
42. Giving evidence before the jury, Mr. Jaromin continued to maintain that he had not been shown EC1, although he agreed that he had previously been shown a picture on a phone. He said that the person in that picture could be anybody. He also agreed that the garda had read over his statement to him, and that the disputed sentences were in it when she read it, but claimed that he would have signed anything at the time because he was being prevented from using the toilet while being questioned. Counsel then renewed the s.16 application in respect of the sentences of the written statement whereby Mr. Jaromin was alleged to have identified the man accompanying Mr. Sychulec as being the man in photograph EC1. Counsel for the appellant submitted that the witness had given an explanation for the inconsistency, and that there was insufficient evidence to support the reliability of the disputed sentences.
43. The trial judge acceded to the application and allowed the relevant sentences to be put in evidence under the terms of the section. He was satisfied beyond reasonable doubt that the witness had been shown the photograph and had made the recorded comment. He did not accept that the statement was not made voluntarily - it had been taken in someone's living room and the witness had been cooperating with an investigation. He was satisfied that the witness knew that he was required to tell the truth in giving a statement, and was being helpful on a voluntary basis. He particularly rejected the implicit suggestions that the garda had decided to make the sentences up, or put them in and not read them over to the witness. He expressly rejected as "nonsense" the explanation about not being permitted to go to the toilet.
44. The jury also heard evidence from the garda who had shown the image on the phone. He agreed that Mr. Jaromin had said that the picture was not clear and he could not recognise the person. No note had been taken of this interaction because there was nothing of evidential value.
The identification
45. It had initially been expected by the prosecution that evidence identifying the appellant as one of the men in the images would be given by a number of witnesses. In the first instance there was a witness listed in the book of evidence, who knew the appellant and had identified him as being the man in photographs shown to her. However, her whereabouts were unknown by the time of the trial and she may have left the country some time earlier. A second potential witness, whose evidence would, according to counsel for the appellant, have been "admissible but frail", also did not appear.
46. At a certain stage in the trial counsel became aware of an issue of non-disclosure in respect of the evidence of a Mr. Robert Werbanowski. Mr. Werbanowski was also a listed witness and, in accordance with his statement as included in the book of evidence, was in a position to give evidence that he had known the appellant's brother and, at his request, had assisted the appellant in obtaining a PPS number. It became apparent to counsel that in fact he had made two witness statements, the second of which had not been served on the defence. This second statement dealt with identification. The statement having been served, the defence objected to the lateness of the disclosure and the identification aspect of Mr. Werbanowski's evidence was not admitted. In any event it seems clear from his evidence that although he had met the appellant after his arrival in Ireland, his acquaintance with him was extremely slight.
47. One of the investigating gardaí, Detective Sergeant Curley, had made a witness statement in which he included his grounds for identifying the appellant as one of the individuals in the footage. However, his proposed evidence was challenged by the defence and was excluded following a voir dire . The officer's knowledge of the appellant appears to have come in the first instance from undisclosed intelligence, and then through dealing with him in Scotland, where he had been arrested and was in custody in relation to another matter, in the course of proceedings to extradite him.
48. The trial judge ruled against the admission of this evidence. He concluded that D/Sgt Curley had not acquired a sufficient degree of " ad hoc expertise" in viewing the particular footage to make the case comparable with R v Clare & Peach [1995] 2 Cr. App. R. 333 (where a police officer was held entitled to give his opinion after substantial and repeated watching of a video, frame by frame). Further, the only rational basis upon which his evidence could be challenged would be by reference to the possibility of "confirmation bias", which would open up prejudicial matters in relation to previous offences, the European Arrest Warrant and the context in which the sergeant had first seen the appellant in the United Kingdom. The prejudicial effect of the evidence would therefore outweigh its probative value.
49. In the course of the submissions on the issue of D/Sgt Curley's evidence the trial judge had indicated to counsel, with reference to DPP v Maguire , that if this evidence was ruled out, he would be satisfied to leave the assessment in the hands of the jury. He commented that it was very good, high quality material. Counsel for the appellant submitted that such a procedure would amount to asking the jury to undertake an investigation into evidence, instead of deciding upon evidence presented to it. He asserted that there were numerous witnesses who could have been asked to view the photographs and make the identification.
50. In his ruling the trial judge made it clear that he did not accept this latter assertion - in his view the evidence indicated the opposite. It was, he thought, a notable feature of the case that none of the witnesses seemed to know who the second man was, and the appellant had only become a suspect through garda investigations.
51. Having referred to various passages from the judgment in Maguire the judge queried whether the opinion of a witness as to the identity of a person shown in video footage was particularly probative. He expressed a view that the jury was in as good a position to assess the material as a witness would be - there would be twelve of them, they could view it as often as they wanted and they would not be looking at it through the filter of somebody else's perceptions and opinions.
52. In the circumstances, the judge considered that there was no admissible evidence of identification from any witness, because there was no witness who knew him and could carry out the necessary analysis and comparison. The case therefore fell clearly into the category in which the jury could ask themselves whether they were satisfied that the person in the footage was the accused. In so doing, they would not be carrying out an investigation or acting as experts.
The charge to the jury
Witness identification evidence
53. The trial judge's charge to the jury dealt extensively with the visual identification evidence. There was a general warning at an early stage of the charge that recognition of a person seen in a picture as being the person seen in an incident involved a process of "perception, retention and retailing", and that the law recognised that there were dangers inherent in that process. A specific warning was given with reference to the descriptions given by the witnesses to the abduction, based on the well-known passage from Casey . The circumstances of the original opportunity to observe were recalled. The trial judge stressed that while the jury had to be cautious and careful in assessing all evidence, what he was now telling them was "over and above that" because of the particular dangers. He also pointed to the fact that where a witness was shown only one photograph there might be an automatic tendency to confirm that it was the individual seen by the witness. The jury therefore had to consider both the specific circumstances of the original observation and the process by which the witnesses confirmed the identification. The warning of the possibility that such evidence could be mistaken, even where the witness was certain of his account, was emphasised.
54. The trial judge made repeated references to the warning in respect of other witnesses who had given any form of identification evidence.
Identification by the jury
55. In the opening remarks of his charge to the jury the trial judge had emphasised that they were not to convict on the basis of racial characteristics, or because the accused belonged to a particular group, or had a certain appearance.
56. The judge observed that the hinge upon which the case against Mr. Gruchacz turned was the jury's assessment of whether or not he was the man in the photographs and in the CCTV material. If it did not satisfy them beyond reasonable doubt that would be the end of the matter, since the rest of the evidence would not support a conclusion of guilt. If they had a reasonable doubt, or if there was a reasonably possible view consistent with the person in the material being somebody else, they must acquit.
57. It was explained that on this particular issue, they were not being asked to adjudicate on evidence given by a witness, and that this was unusual.
"You're being asked to convict somebody of murder, either wholly or substantially, on that assessment you're being asked to carry out…You have to be, all 12 of you, you cannot find as a fact the man over there is the man in that material unless all 12 of you, collectively and individually, agree beyond reasonable doubt with that proposition."
58. The judge reminded the jury that he had already given warnings about the dangers inherent in visual identification evidence. It was clearly explained that those dangers also arose in respect of the members of the jury, collectively and individually. However, they had the advantage of being able to discuss the matter and warn themselves of the dangers. "So, you are in the position of the witness referred to in the warning. You will know this, you don't need to be told this because you are carrying out something that is ordinary. But I want to drive it home to you, members of the jury, you know yourself. Mr. Devally correctly alluded to it, you make mistakes all the time, even with people that you know, the instance that he gave, tapping somebody on the shoulder and then being taken aback because it's not the person that you thought. Walking down Grafton Street you see somebody coming towards you, you raise your hand to greet them because you think - I think it's Mr. Orange or Mr. Devally, who I happen to know and they come a bit closer and you're left with your hand in the air feeling like a complete eejit because, of course, it's not them at all. So that's the kind of mistakes that we make all the time.
So, what I am saying to you, members of the jury, as jurors being asked to come to a very serious conclusion, you're going to be very careful anyway. In this context I want you to be particularly careful, particularly slow to come to an adverse conclusion because of the inherent dangers…So there is a very, very strong warning at play."
59. The judge referred to the procedure being adopted as "suboptimal", and contrasted it with better ways of carrying out identification such as properly conducted identification parades. It was stressed that even in the latter case there would be a strong warning.
60. The jury was reminded what defence counsel had said on this aspect - that in the circumstances it would be simply a group of people drawing some kind of generalised conclusion about a person's appearance, and that the process was improper because it invited the jury to ignore the absence of any forensic evidence connecting the man in the pictures with the places where he was said to have been. The judge emphasised very strongly that the jury was not being asked to draw a conclusion because the man was Polish - they would have seen that even the limited number of Polish witnesses in the case came "in all shapes and sizes". Similarly, the fact that the accused sat in a particular place in court was not to influence them.
61. Counsel had also criticised the absence of any assistance to the jury such as evidence of "facial mapping". The judge told the jury that they could take this into consideration in the context of warning themselves of the pitfalls and dangers involved in the process.
62. In requisitions counsel for the appellant submitted that the jury should be given an extra warning in relation to the particular difficulty of identifying a person of a different nationality. The trial judge was satisfied that he had made it clear that it was not enough for the jury to think that the man in the images was Polish, or was a man with particular characteristics.
The evidence of Mr. Jaromin
63. The trial judge did not attempt to summarise Mr. Jaromin's evidence but read out a note of the questions and answers. He explained to the jury that the in-court evidence was to be treated in the same way as that of any other witness in terms of credit and reliability, and that it was for them to decide what they accepted or rejected. He went on:
"Now, on credibility, members of the jury, one of the things that arises in relation to this witness, Mr. Jaromin, is that there's a serious credibility issue. There has to be a serious credibility issue because the prosecution called him and then treated him as hostile. And that means for these purposes a hostile witness is a witness who's called by a party in the expectation that he will say one thing based on a previous statement, and where he says things which are materially inconsistent and different to that."
64. The judge then explained what it meant to describe a witness as hostile, and the specific and limited purpose of permitting the affected party to cross-examine in order to undermine the credibility of the witness.
65. The jury was then told that, absent the statutory procedure about to be explained, that was where matters would traditionally have been left. A trial judge would have made it clear to the jury that the out-of-court statement had been admitted only for the purpose of assessing the credibility of the in-court evidence, and that the statement was not proof of what it said. In relation to the overall effect of that procedure, the judge said that the jury in such a case would probably not be able to accept anything said by the witness.
66. That situation was contrasted with the effect of the admission of the out-of-court statement as evidence. It was stressed by the trial judge that his decision to admit it did not mean that it carried any particular weight - it simply meant that the jury got to hear it. The preference was for trials to be dealt with on the basis of evidence given in the witness-box, and this procedure was exceptional. The judge pointed to the unusual features of the evidence - it was not on oath, was not subject to judicial control and might contain hearsay. He commented here that he did not propose to get into an exposition of the hearsay rule, and continued:
"And of course you're presented with something of a dilemma in assessing that and there's no getting away from that, members of the jury. He's been declared a hostile witness and previous statements have been put to him and he's been cross-examined on the basis that, well, there must be a question of him being damaged goods in terms of his credibility and there's absolutely no getting away from that….Where somebody has become a hostile witness, it leads to inevitable serious and lasting question marks over their entire credibility, whether it's what they're saying in court or what they're saying on other occasions. So that's the first thing I am saying to you, you can't escape looking at the witness as being damaged goods in that sense."
67. The judge emphasised that the jury had a number of choices to make, but advised caution in accepting anything from a witness who had been damaged in this way. They would have to examine anything coming from him very carefully, whether it was in court or out of court. It would be legitimate for them to find that they could not accept anything he said beyond reasonable doubt. It would also be open to them to reject the in-court evidence and accept the out-of-court evidence, or vice versa .
68. In explaining the possibility of drawing inferences from evidence admitted under the statute, the trial judge referred to subs. (5) of s.16 of the Act of 2006. The evidence as to the circumstances in which the statement was taken was summarised, including the accepted fact that the written statement had included the disputed sentence when it had been signed, that the witness had initialled an amendment in it, and that there was a declaration as to its truth at the top. The account given by Mr. Jaromin was summarised, and the jury was told that if they thought his version was reasonably possible they should reject the statement. Reference was also made to what counsel for the defence had said in his closing - that this was a witness with absolutely no credit, and that various factors such as his relative lack of English and a wish to be compliant might have affected his willingness to sign the statement.
69. However, the jury was told that, if satisfied beyond reasonable doubt that the statement was made, they should consider all the factors to which they could attach weight. If satisfied beyond reasonable doubt that it represented the truth, they were entitled to rely upon it.
70. The judge also referred to the earlier encounter between Mr. Jaromin and the gardaí, when he had been shown the image on Garda Treacy's phone, and said that it was unfortunate that the court did not have that image.
71. In the course of requisitions, counsel for the appellant submitted that the jury should be told that the interaction of the "hostile witness" procedure with the procedure mandated by s.16 meant that all of the witness's evidence should be disregarded save for the lines of the statement admitted under the latter provision. This argument was made on the basis that the Court, in ruling that the s.16 procedure should be utilised, had found that no reasonable person could accept the explanation given for the inconsistency. In the circumstances the remainder of the witness's evidence could not be relied upon.
72. The submission was not accepted by the trial judge, who considered that his charge had been in accordance with the direction specified by McKechnie J. in Murphy (discussed above). Both the in-court evidence and the excerpt from the out-of-court statement were evidence, and he had pointed out clearly that it was all overlaid with serious credibility issues in respect of Mr. Jaromin. Counsel clarified that he was not criticising the direction in relation to s.16, but was submitting that the admission of the excerpt meant that the Court had concluded that there was no satisfactory explanation for any inconsistency. The remainder of the evidence, not having been admitted under s.16, must now be seen as hostile and therefore be disregarded.
73. In response to a request during deliberations, the jury was given a copy of the relevant portion of the witness statement. This was done without objection, with counsel for the appellant waiving any technical point as to whether it was correct.
74. The jury unanimously convicted both accused after deliberating for just over five hours.
Court of Appeal
75. Giving judgment on behalf of the Court, Birmingham J. commenced his discussion of the identification issue by cautioning against "setting in stone" the remarks of Barron J. in Maguire . The point of the decision of the Court of Criminal Appeal in that case was that the jury had been entitled, in the circumstances of the case, to view CCTV footage in order to make an identification. The observations in relation to the position in other cases was, strictly speaking, obiter .
76. At that point Birmingham J. remarked:
"It might be thought that there was always a degree of artificiality in suggesting that when an identification witness was available, that the function of the jury was not to make their own identification but to use the photos or the CCTV footage as a tool when assessing the reliability of the identifying witness."
77. He noted that the technology had moved on, and that footage could now be of a very high quality. There was no reason why, in appropriate cases, juries should not be permitted to make an identification. However, Birmingham J. was careful not to purport to lay down a universal rule, recalling the extent to which cases vary and also the usual duty of a trial judge to exclude evidence where the prejudicial effect outweighs the probative value.
78. It was noted that, once its relevance was established, the CCTV footage was admissible as real evidence. As real evidence it was something that the tribunal of fact could scrutinise and examine for itself. The judgment continues:
"There is no difficulty with a jury doing so where the image or recording is of high quality, both in terms of its resolution and definition, and is available for careful and unhurried viewing, and re-viewing if required. The reason the jury is in a position to do this is precisely because a high quality image has been preserved and is available to them. Heretofore, high quality CCTV images, both still and moving, were not routinely available to juries. Moreover, in any case where a piece of imagery constituting real evidence is not of high quality, or represents only a fleeting or partial image, it remains open for the trial judge to refuse to allow it to go to the jury in isolation without other extrinsic evidence of identification.
There is a world of difference between an identification by the jury conducted in circumstances where they have available to them a high quality image for comparison with the accused, or a witness, that they have had the opportunity of observing in person in the courtroom, and a witness's testimony concerning his/her out of court identification of a relevant person which is not recorded, but merely related in evidence in court. Such observations are frequently transient and fleeting and occur in circumstances where the opportunity for observation has been less than ideal. Such out of court identifications are recognised as being fraught with potential dangers necessitating the implementation of safeguards such as the convening of an identification parade, and the giving to the jury of a Casey/Turnbull type warning.
In addition, real evidence comprising high resolution digital imagery has an objective quality about it, thereby allowing it's use by a jury for the purpose of identifying the accused to be differentiated from the circumstances of a dock identification."
79. The Court also considered the submission of the appellant that permitting the jury to make the identification in this manner was unfair and unexpected. It was suggested that the defence strategy might have been different if it had been known that this might happen. Birmingham J. pointed out that the appellant had not been identified as a suspect until some considerable time after Mr. Kurowski and Mr. Rutkowski had viewed the footage from the service station. At the trial, the appellant was fully aware that the prosecution would seek to establish that he was one of the men picked out in the footage, and that it was intended to do so through the evidence of D/Sgt Curley. "However, the admissibility of Detective Sergeant Curley's identification was challenged. It was, of course, the absolute entitlement of the defence so to do but they must have realised that if they succeeded, the prosecution would in all likelihood fall back on the option of having the jury make their own identification which was one of the possibilities considered in The People (DPP) v Maguire [1995] 2 I.R. 286. It may be that the defence hoped that the prosecution would not succeed in such an application but that misplaced hope does not render the trial unfair."
80. Turning to Mr. Jaromin, the Court found no issue with his evidence as to overhearing the name "Andrzej" during an interaction with the co-accused and concluded that there was no breach of the hearsay rule. It was an admissible although relatively insignificant piece of evidence.
81. Having considered the ruling of the trial judge, the Court held that the application made pursuant to s.16 of the Act of 2006 was a proper one, that had been dealt with in a careful and considered manner. The decision of the trial judge could not be impeached.
Submissions on this Appeal
Submissions on issue 1 - identification evidence
82. Counsel for the appellant submits that the trial judge erred in concluding that the case fell within the scope of the third point identified in Maguire and that the identification of the accused could be left to the jury due to an absence of independent identification evidence. More specifically, it is submitted that he fell in to error in concluding that "available evidence" meant only evidence that the prosecution put before the jury. Rather, it is submitted, the phrase should be interpreted to mean any evidence which the prosecution could reasonably have acquired. In this case, it had been intended that the jury would hear up to three witnesses saying that the man in the photographs was the appellant but they were left with a vacuum.
83. Counsel refers to the potential evidence of Robert Werbanowski, and submits that when counsel became aware during the trial that Mr. Werbanowski was in a position to give identification evidence, the proper solution was to discharge the appellant, proceed against the co-accused, serve the additional evidence and re-try the appellant on a later date.
84. It is argued that as a result of the course taken by the trial court none of the usual safeguards which normally attach to identification parades were applicable. The jury were put in the position of witnesses, who had observed the appellant in a prejudicial context (i.e. the dock) for ten days, but had no explanation as to why he had been charged and no-one to compare him with in deciding whether or not he was the man in question. They could not be cross-examined and there was no way of knowing how they had approached the issue.
85. It is submitted that fair procedures dictate that an accused must at a minimum be put on notice of the prosecution's intention to invite the jury to become the identifiers before the commencement of the trial. The appellant would then have considered his options - for example, he could have considered the possibility of calling expert evidence on facial recognition, or might have elected not to be present in the courtroom. It is argued that in the circumstances the jury effectively conducted a "dock identification", a practice which the courts generally abhor, and that the trial that transpired was not the one that the appellant had prepared for.
86. Counsel for the Director submits that there is no general rule in law preventing the jury from watching CCTV footage and identifying the person in the footage by comparing it with the accused in the dock. It is submitted that, as was accepted by the Court of Criminal Appeal in Maguire , a jury may be permitted to engage in such an identification process where there is no other direct evidence of identification. As to the relevant considerations to be taken into account, counsel makes reference to factors such as the quality of the footage. It is accepted that the appropriate warnings in relation to identification evidence, in accordance with People (AG) v. Casey (No. 2) [1963] I.R. 33, should be given to the jury.
87. The Director also submits that it is an inevitable consequence of showing such footage that that the jury will determine for itself whether it shows the accused. If the footage is sufficiently clear and there is no unfairness to the accused, it is argued that this should be permissible. A further practical consideration concerns the increasing reliance on such evidence in criminal trials in the face of constant technological advances. Reference is made to the decision of the Court of Appeal of England and Wales in R v. Clare & Peach [1995] 2 Cr. App. R. 333 where it was stated by Lord Taylor C.J. that:-
"…as technology develops, evidential practice will need to be evolved to accommodate it. Whilst the Courts must be vigilant to ensure that no unfairness results, they should not block steps which enable the jury to gain full assistance from the technology."
Submissions on issue 2 - evidence of Tomasz Jaromin 88. Counsel for the appellant refers the Court to the decision of the Court of Criminal Appeal in People (DPP) v. Rapple [1999] 1 I.L.R.M. 113 as authority for the proposition that there are two situations in which photographs may be shown to a witness as part of the identification procedure: suspect generation and suspect confirmation. In respect of the former it is noted that the Court in Rapple identified certain safeguards that must be implemented: the gardaí must show the photographs to the witness in a manner which minimises the risk of prejudice to the accused; a witness should be shown a number of photographs of possible suspects; if a witness identifies a suspect by choosing a photograph from a number of possible photographs, the witness should also identify this suspect in person; and a trial judge should draw the jury's attention to the fact that photographs were shown to the witness to generate an identification and direct them as to the dangers of such a form of identification. It is submitted that none of these safeguards were present in the appellant's case. It is also submitted that this particular problem is compounded by the fact that it emerged at the trial that the witness had been shown a photograph on a mobile phone a day prior to being shown the photo from which he purportedly made the identification.
89. Counsel relies upon the fact that the Court in Rapple disapproved of the use of photographs for suspect confirmation as being unfair and prejudicial. Further, in People (DPP) v. Brazil (Unreported, Court of Criminal Appeal, 22nd March 2002) Keane C.J. referred to the identification evidence of a witness who had been shown a photograph of the accused before an identification parade as "tainted and rendered almost valueless". It is thus submitted that the identification evidence of Mr. Jaromin ought not have been admitted. Counsel also refers to several other infirmities in the evidence of Mr. Jaromin: it is submitted that the statement was not given on oath, the normal declaration was not utilised, it was not video recorded and there were doubts surrounding the voluntariness of the statement.
90. On the second issue relating to the evidence of Mr. Jaromin it is submitted that the procedure envisaged by s.16 was unavailable once the witness was declared hostile and his credibility had thus been impugned. Counsel argues that the two cannot be used in tandem and that a prosecutor must choose which route to take. It is submitted that in this case the prosecution was permitted to rely on certain favourable parts of both the oral and written statements of the witness, while discounting unfavourable elements as lacking credibility.
91. On the identification issue the Director submits that the Court should have regard to the efforts made to adduce oral identification evidence.
92. It is submitted that the s.16 procedure was invoked in relation to a very limited part of the witness statement, and that the trial judge's ruling was in accordance with the provisions of the section. The views of the trial judge must be given considerable weight (see for example DPP v. Cunningham [2007] IECCA 49) and the trial judge had an excellent opportunity to assess the demeanour of the witness before making the relevant rulings in relation to his evidence. The Director contends that there is no conflict between s.3 of the Act of 1865 and s.16 of the Act of 2006 and that they are not mutually exclusive. Insofar as the witness might have been described as "discredited" after being declared hostile it is submitted that this was a matter for the jury.
Discussion
93. In my view the Court of Appeal was correct in casting some doubt on the status of the dicta in Maguire . It is clear, firstly, that the Maguire court saw video evidence primarily as an aid to the assessment of the credibility of identification witnesses, and only as evidence in its own right in very limited circumstances. However, it is true that there was always something artificial about telling a jury that they were to look at material of this nature only for the purpose of seeing whether it supported the credibility of the witness - this would inevitably be a very difficult instruction to follow, and the likelihood always was that they would look at it for the purpose of seeing if the identification was correct.
94. It also seems likely that this tendency will have strengthened with the considerable technical improvements since the period in which Maguire was decided. The CCTV footage presented in trials is often of very high quality, where the jury may well feel that their view is as valid as that of any witness.
95. Secondly, the proposition that the jury should make the assessment of identification for itself only if no witness is "available" to give identification evidence may give rise to an unnecessarily inflexible approach if it is read as encapsulating an exclusionary rule. It is not appropriate to read this passage as if it were a piece of legislation, with the benefit of the any ambiguity being given to the defence. What the Court intended to convey, in my view, was that witness identification was preferable to jury identification but that the latter was legally permissible. The practical common sense of this position is not in dispute.
96. In this case the prosecution had intended to call identification witnesses but was prevented by a combination of witness unavailability and the rulings of the trial judge. There is no criticism of those rulings, and they were based on perfectly valid defence objections to late disclosure and prejudicial content. However, there was always a risk that, if the defence succeeded in its objections to each of the individuals presented as identification witnesses, the trial judge would permit the matter to go to the jury on the basis of the CCTV material and photographs.
97. This is not something about which the prosecution was obliged to give pre-trial notification, since it arose from the judgment in Maguire and furthermore was flagged by the trial judge in the course of submissions at a relatively early stage in the trial. It is true that it would have been open to the trial judge to adjourn, in order to give the defence time to consider Mr. Werbanowski's statement, but that was a matter within his discretion. In any event it is clear that Mr. Werbanowski would not have been in a position to give particularly strong evidence. Since a key part of the prosecution case against the appellant was always going to be the evidence that the man in the footage had committed the crime, the question of expert evidence on "facial mapping", or other defence strategies, could have been considered by the defence at any stage.
98. I can see nothing wrong in principle with the jury making its own assessment of the content of the material. This Court clarified the status of CCTV footage in DPP v. A. McD. [2016] 3 I.R. 123. The judgment of McKechnie J. refers to the frequency with which such footage is used in modern criminal trials, and observes that it is difficult to argue with the perception that it is the "best evidence". Subject to being properly proved, and to any ruling on such objections as may be raised, it is real evidence and is available for consideration by the jury in the same fashion as any other piece of real evidence. I agree with the view taken in R. v Dodson (1984) 79 Cr. App. R. 220 to the effect that the jury are not asked in such circumstances to take on the task of an expert, and are not properly to be regarded as witnesses. They are simply assessing the evidence put before them, in accordance with the guidance given by the trial judge.
99. However, I would caution against any belief that the assessment of video evidence by a jury is necessarily an entirely straightforward task, or (as might be read into the judgment of the Court of Appeal) that it does not require any particular warning. While the technology has undoubtedly improved, it remains a fact of life that many people struggle with the recognition of unfamiliar faces from images. In Identification from CCTV: the risk of injustice (See: Costigan, Identification from CCTV: the risk of injustice (2007) 8 Crim. L.R. 591), there is a discussion of a number of experiments carried out by psychologists that demonstrate the difficulties. For example, a significant number of participants did not correctly match a face seen on a video clip with the photograph of the same person from an array, even where the images were of high quality. The problem appears to lie in the mental process by which people "encode" an unfamiliar face.
100. This does not mean that it is necessarily unsafe to rely on a jury assessment, any more than it would necessarily be unsafe to rely on eyewitnesses. It is not apparent that the psychological experiments were conducted in a manner that resembles the task of a jury - for example, it does not appear that participants could discuss the task with others, or that they were given any guidance, or that they were required to feel sure beyond reasonable doubt and to decline to pick a photograph if left with such a doubt. The point to be stressed is that there is a need for caution. In my view, the trial judge in this case was correct in giving the jury repeated and strong warnings to the effect that they were liable to the same weaknesses as an eyewitness. The terms of his charge in this respect were, in my view, impeccable.
101. On the second issue, the principal argument made by the appellant is that s.3 of the 1865 Act and s.16 of the 2006 Act cannot be used together.
102. It is true that the "hostile witness" procedure is frequently used for the purpose of undermining the credibility of the evidence given on oath in the trial. A clear example would be where the witness initially makes a statement directly implicating the accused ("I saw him commit the crime") but gives evidence to the contrary effect ("I saw the person who committed the crime and it was not him"). If the evidence was allowed to stand without challenge, its acceptance by the jury would mean that the accused would be acquitted. The s.3 procedure is aimed at ensuring that the jury understands that the evidence may be entirely unreliable in the circumstances. However, before that point is reached the process may achieve the objective of persuading the witness to confirm the truth of the statement. Whether or not that happens, there will still be an issue of credibility because of the conflict between the accounts.
103. The s.16 procedure, on the other hand, is concerned with giving evidential status to the statement whether or not the witness has attempted to give a contrary account in court. Nonetheless, it is a process that will inevitably undermine the credibility of anything emanating from the individual in question.
104. Both procedures, therefore, have the consequence that the credibility of the witness is damaged. However, in my view these are matters which the judge is entitled to leave for assessment by the jury, provided the weaknesses in the evidence are adequately explained. There is nothing in the Act of 2006 to support the suggestion that the s.16 procedure cannot be utilised if the "hostile witness" process has been gone through - the fact that the credibility of the in-court evidence of the individual has been damaged does not mean that a statement admitted by the trial judge in accordance with the statutory criteria might not be true.
105. In this particular case, the consequence of the argument urged on behalf of the appellant would have been that the jury would have been left with a meaningless couple of sentences referring to a "second man", since the evidence about the circumstances in which a second man had been seen would have to be disregarded. That is patently not the intent of the legislation, and the express terms of s.16 of the 2006 Act make it clear that the two provisions can be operated without prejudice to each other.
106. Juries are invariably told that they are entitled to accept or reject evidence in whole or in part, and the legislation does not, in my view, alter this by creating a situation where a witness' evidence must be accepted as a whole or not at all. I would, however, endorse the view expressed by the Court of Appeal in Campion to the effect that the section sets a high bar for the admission of a statement, and that if the judge takes the view that the statement is substantially untrue (or, I would add, likely to be substantially untrue) then the risk of injustice means that it should not be admitted.
107. In this case the s.16 procedure was used in respect of a discrete issue. The short excerpt from the statement was left to the jury with abundant and entirely justified warnings as to the credibility of Mr. Jaromin. The evidence given in court was treated in similar fashion. It is incorrect to say that his evidence was treated as credible where it favoured the prosecution - the judge admitted the excerpt because he considered that the circumstances in which the statement was made grounded a finding that it could be relied upon, but his charge to the jury made it entirely clear that they could legitimately refuse to accept anything that the witness had said at any stage.
108. Finally, I do not see any force in the contention that the excerpt should not have been admitted because the witness had previously been shown a photograph. The submission has proceeded largely on the assumption that the photograph related to the appellant, and it was said that there was no evidence as to Mr. Jaromin's reaction. In fact, there was evidence from both Mr. Jaromin and the garda who showed him the image that he had found it unclear and had not recognised the person shown. I agree with the trial judge that, given the stage the investigation was at, it was reasonable for the gardaí to show the images they had gathered. By contrast, EC1 was a clear, passport-style photograph. It is difficult to see how this sequence of events could give rise to the "confirmation bias" phenomenon that lies at the root of the objections to the practice of showing photographs for the purpose of suspect confirmation.
109. In the circumstances, I consider that the grounds of appeal are not made out. I would dismiss the appeal.
